Terms and Conditions (Terms of Service)
We believe honesty and trust are paramount in client relationships, but all work requires guidance in order to set out our professional services and outline what you (“The Client”) can expect from us.
Below are Emedia Creative Holdings Pty Ltd (henceforth referred to as “EMC”) standard terms and conditions (“Terms”) which apply each time you engage us to do work for you. It is vital that you fully understand these Terms before commencing any project with EMC. Please note that this document may be altered from time to time and without notice, and that all work is carried out on the understanding that you have agreed to the Terms set out below.
Please contact a representative at EMC if you have any questions concerning the below.
Commencement of Work
The Client is taken to have agreed to the Terms upon the following actions of engagement:
The Client agrees to pay a deposit (50% of the quote) prior to commencing a design project, with the balance payable prior to delivery. Once work has commenced on a project such as research, resource allocated or design work, the deposit is non refundable. EMC endeavours to provide design services that meet and exceed a client’s needs and expectations, but in the event of a “change of mind” (after a project has commenced) by The Client, the initial 50% deposit is forfeited. Any unused portion will be refunded after costs have been covered.
If the work time exceeds 4 calendar weeks in duration, The Client agrees to a progress payment, or 25% of the full amount per month until the conclusion of the project, with any outstanding amount payable in full upon delivery.
All accounts must be settled in full prior to the release of any final files. If you are having difficulty paying your invoice, please get in touch as soon as you are aware of the issue, so we can discuss a solution that works for you. Terms relating to non payments and overdue payments can be found below.
The Client agrees to allow EMC to showcase all work created in the course of a project as part of our portfolio. EMC acknowledges the confidential nature of certain projects and agrees to only display project work once product, website, prospectus and alike has been publicly launched/commences.
EMC shall not be liable for any failure or delay in supply or delivery of products/services where, due to any cause or circumstances whatsoever is outside the reasonable control of EMC. Including but not limited to war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, civil commotions, accidents of any kind or act of terrorism.
Fees for Service
It is agreed that the fee for service shall be the cost estimates provided via email, unless work undertaken exceeds work outlined. If work undertaken exceeds the items specified in the quote, The Client agrees to pay appropriate fees for the excess work, outside the scope of the original agreement. The client will be notified of increases in the scope of the project and will be made aware of the estimated cost and hourly rate.
This is defined as any work involving additions to the list of items defined in the quote or changes to finished artwork after sign off by an authorised representative of The Client. From time to time The Client may require extra design during a project, or extra files upon completion of a project. The Client will be informed that the alterations or changes requested fall outside the scope of the original estimate. If The Client wishes these alterations to be made they must agree in writing.
Should additional design not initially quoted for and out of original scope be requested during the design process, additional costs will be added to the final invoice, payable prior to delivery of design files.
Publication and/or release of work performed on behalf of the client by EMC may not take place before cleared funds have been received.
Any booking fees, delivery fees, design commencement fees, or progress payments are non refundable once work has commenced, if the contract is terminated by the client.
Liability & Litigation
It is agreed that all work and materials provided for The Client by EMC will be free of encumbrances and may be lawfully used by The Client without infringing upon the rights of others.
Under no circumstances shall EMC be liable to The Client for an indirect or consequential loss suffered by The Client relying on the information included in the supplies prepared by EMC including (without limitation) loss of profit, loss of contracts or pure economic loss. Any liability is strictly limited to the direct losses associated with remedial costs of the supplies only, not to include claims for delays, out of sequence working, non-productive overtime, award of costs, etc. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.
Approval of Final Artwork
While EMC takes all care to avoid errors, EMC accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to print or production. It is The Client’s responsibility to proof read and approve all final copy before the production of artwork. The email verification of the Client’s representative shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation. No refunds or reprints are given after a final approved design has gone to print due to oversights by “The Client’s” proof reading.
Print Returns and Refunds
It is agreed that EMC is not responsible or liable for any errors contained in the final product after the final product has been approved by the Client. EMC will not be held responsible for any changes or amendment made after approval. It is the sole responsibility of the client to notify EMC of any such errors during the revision cycle and before the final files have been generated.
Print Colour Variations
With all printing there may be some colour variations from what you have seen on screen to the final product or previous orders. This is due to the nature of CMYK printing and is unavoidable. If colour accuracy is paramount it is advised that you attend a press check to approve the print material. This will need to be arranged prior to print and may incur extra cost.
EMC retains copyright on the overall design and material created for your site. Upon receipt of final payment for your project, we transfer to you a non-exclusive license to use these designs and code in your site.
You agree that you are solely responsible for the copyright compliance of all materials that you provide to us. You agree that materials are your own original work, or that you have obtained suitable licenses or permission to use. You retain copyright and ownership of all materials you provide for the site.
Until final payment EMC retains ownership of all artwork and website architecture. EMC reserve the rights to certain elements used to create your projects including RAW files, fonts, patterns, stock images, textures, colour palettes and other non exclusive items.
EMC reserve the right to use stock images in the creation of designs if required. Costs of this will be outlined to the client prior to purchase if not included in the proposal quote.
Other than for the promotional use of EMC, all services provided shall be for the exclusive use of the client’s said purposes only. Designs may not be used for other promotional items, website or printed materials without permission. For additional usage, price will be assessed as needed.
In accordance with the Australian Copyright Act (1968), ‘licensing of copyright is subject to a mutual agreement made between client and designer’. Copyright will remain property of EMC till such time an agreement is in place. EMC reserve the right to use all artwork produced, concepts produced in the course of the project (including those concepts not selected) and revisions for the purposes of promoting EMC in print or digital media portfolios, social media and blogs, except where the client has specifically requested in writing otherwise.
Each project assumes goodwill from both EMC and The Client regarding:
From time to time circumstances beyond the control of either party may result in the need for project cancellation. In the event of the client cancelling a project after a project has commenced, the advance payment (deposit) will be forfeited in lieu of compensation to EMC. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If the project is more than 50% completed (this is determined by EMC and the client by negotiation) a pro-rata payment is payable for time spent up until cancellation notice.
If a project is cancelled by EMC, due to unforeseen circumstances, the deposit will be refunded in full to the client in a timely manner if work has not commenced.
In the event of cancellation of the project by the client, ownership of all copyrights and the original artwork shall be retained by EMC and all work to date will be paid for.
Website Design Post Completion Alterations
Once web design is complete, EMC will provide the client with the opportunity to review the final layout. Please check the final layout carefully. Any changes after the design goes into development will delay the website delivery and will incur extra design and development fees.
Employees of EMC shall not, at any time either during their employment or thereafter, discuss or divulge confidential affairs or details of The Client or any of its clients or associated companies to anyone whatsoever.
Late Payments and Default
Accounts which are not paid within 14 days will incur a late administration fee of $20 + GST. Accounts which remain outstanding for 14 days after the date of invoice will incur an additional late payment fee equivalent to 5% of the total costs for each week payment is outstanding.
An account shall be considered in default if it remains unpaid for 30 days from the date of invoice or The Client has stated expressly that they do not intend to pay an invoice by EMC, unless prior arrangements have been made. EMC shall at its sole discretion suspend any and all services provided to the client or its subsidiaries (including but not limited to hosting, websites designed files, concepts, artwork, and email) and employ debt collection measures until the total outstanding balance has been fully paid. This includes any and all unpaid accounts due for services ordered, including, but not limited to design, hosting, domain registration, search engine submission, maintenance, sub-contractors, printers, photographers and libraries, plus bank interest calculated daily for each day payment is overdue.
Suspension of such services does not relieve the client of its obligation to pay the due amount. Files on external servers, such as hosted e-commerce solutions will be removed and held until payment is made or for 30 days until the client has paid for their invoices in full.
The Client whose account is in default agree to pay EMC reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
EMC retains all copyright for work performed until full project costs have been paid. EMC reserves the right to reuse or resell work undertaken in the case of payment default.
EMC accepts no liability or responsibility for loss of income or damage to the Client for work removed from third party servers, as a result of non-payment and The Client will not take legal action for any situation arising from invoice disputes or removal of the disputed work in such cases.
Graphic design, strategy, photography, TVC, illustration and marketing are all highly creative and subjective art forms. As such EMC take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however EMC cannot be held responsible for variations between expectation and outcome. Our goal is to help you achieve your business objectives and maintain a mutually beneficial relationship.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
EMC shall be under no liability whatsoever to The Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by EMC of these terms and conditions.
EMC may license or sub-contract all or any part of its rights and obligations without The Client’s consent.
The failure by EMC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect EMC’s right to subsequently enforce that provision.